Courtroom trials come in essentially two flavors – bench trials and jury trials.
Bench trials are before a judge sitting without a jury, who hears the evidence, decides the facts, and enters judgment accordingly.
Jury trials are just that: trials at which a jury hears the evidence, is given instructions by the court, and renders a verdict. The court then enters the judgment.
Bench trials and jury trials are two completely different animals.
Judges were lawyers for years before they became judges, and have, to some extent, heard it all before. They tend to be more predictable, and compromise oriented, in deciding cases.
Juries on the other hand can be wildly unpredictable.
In bench trials, judges are privy to the facts that are admissible as evidence, and also to matters that are technically not admissible in evidence, such as information that is hearsay, opinions, speculation, unduly prejudicial and irrelevant to the true issues in the case. Judges are supposed to and are presumed to be able to set such inadmissible information aside in their decision-making.
In jury trials, great lengths are taken to prevent jurors from getting so much as a whiff of any matters that are inadmissible as evidence. And one way to earn a strong rebuke from the court, or even a bar complaint, is to blatantly impart information to a jury that is clearly outside the scope of admissible evidence.
Style points for a lawyer are huge in front of a jury, much more so than in a bench trial. Jurors tend to come into the courtroom wide-eyed. But some are bored, and some impatient and less than happy about having to be there. The importance of making a favorable impression and keeping it interesting and even entertaining to jurors, irrespective of the strengths and weaknesses of your case is huge, immensely more so than trying a case to the bench, where the judge is far less likely to care about form over substance, and perhaps a bit more tuned into political considerations than a jury.
Trying cases to a jury is something of a specialty. The rules, procedures, strategies and niceties regarding selecting, persuading and instructing a jury can be detailed, technical and challenging, and the time, money and effort that go into preparing for and trying a jury trial can be immensely greater.
In fact, if you tore a page from the lawyer section of the old Yellow Pages book, and you threw a dart at the page, chances are greater than not that you will hit the name of a lawyer who has never tried a jury trial than one who has.
When I was in law school, more than 30 years ago, that’s what my core group of friends and I all aspired to do – be trial lawyers who tried jury trials.
Since that time, I have tried some 20 jury trials. That might not sound like a lot, and maybe it isn’t. But that also means I’ve handled some ten times that many cases over the years that would have gone to jury trial had they not settled before the trial, sometimes just a day or two or three before the trial, and sometimes even the day the trial is supposed to start. That’s how it sometimes happens. Nine out of ten jury cases are settled without trial.
This is not to say that all I do is trial work. Far from it at this stage of my career. I handle a lot of other types of matters. But, my first eight or nine years of practice, yes, pretty much all I did was trial work, which actually means a lot of trial preparation work – pleadings, motions, discovery, depositions and settlements, with an occasional jury trial along the way.
And, as much as my practice has migrated away from that arena, to that of “an old man practicing old man law,” it seems like once or twice a year I get a hairy case or two to try, sometimes bench, and sometimes jury, that keeps me awake at night, busting my fanny, and working weekends.
Oh well, I guess I should be happy about that. Actually, I am.
Ken Garten is a Blue Springs attorney. Email him at email@example.com.